State v. Abdul-Haqq

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.SALEH ABDUL-HAQQ, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Appeal No. 82-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 29, 2007

Before Judges S.L. Reisner, Gilroy and Baxter.

Defendant Saleh Abdul-Haqq appeals from his conviction in a trial de novo on charges of possession of marijuana under fifty grams, N.J.S.A. 2C:35-10(a)(4), and possession of a controlled dangerous substance (CDS) in a motor vehicle, N.J.S.A. 39:4-49.1.*fn1 The Law Division sentenced defendant to a two-year term of probation. On the charge of CDS in a motor vehicle, the judge also imposed a $200 fine, $6 surcharge, $33 in court costs, and a mandatory two-year suspension of defendant's driving privileges. On the possession of marijuana conviction, the judge imposed a $1000 fine, $6 surcharge, $33 in court costs, a $500 DEDR penalty, a $50 lab fee, a $50 VCCB penalty, a $75 SNSF assessment, a $50 DARE assessment, and a consecutive one-year suspension of driving privileges. The payment of all fines and penalties, as well as the driver's license suspension, were stayed pending appeal.

In the municipal court, defendant stipulated that the substance found in his vehicle was marijuana and that the marijuana had been maintained in a proper chain of custody. He did not, however, stipulate that the marijuana belonged to him, as opposed to his brother, who had recently driven the car.

On appeal, defendant argues that the Law Division wrongly:

(1) denied his motion to suppress; (2) failed to make sufficient findings of fact on the issue of possession, as required in a trial de novo; and (3) imposed an excessive sentence. We reject defendant's contentions concerning the first claim, but agree with the second claim, that the Law Division failed to fully articulate its reasons for finding defendant guilty. We accordingly affirm the denial of the motion to suppress, vacate the conviction, and remand to the Law Division for findings of fact on whether the State approved its case beyond a reasonable doubt.

I.

On February 28, 2005 at 8:45 p.m., Evesham Township police officer Jason Siitonen was on patrol in the area of Route 73 and Baker Boulevard. He parked across the street from a gas station because "[w]e had intelligence that there [were] possible CDS transactions coming from the gas station, from . . . one of the attendants there." While positioned across the street, Siitonen saw a car operated by James Rushing enter the gas station parking lot. From "previous intelligence," Siitonen knew that Rushing "was involved in the use and distribution of CDS in and around [Evesham Township]." Rushing pulled in near the service bays, even though no automotive repair technicians were on duty at the time. While Siitonen was observing Rushing's vehicle, a small car with a Maryland license plate pulled alongside Rushing's car. At that point, a male gas attendant "picked up" Rushing and the two left the gas station in the gas attendant's car. The car with the Maryland license plate followed Rushing and the attendant onto Route 73, but police lost sight of them. Officer Siitonen and Officer Anthony Padulese, who was in another car, then returned to their original observation point across the street from the gas station.

Shortly after Siitonen and Padulese returned to their observation point, they observed a Volkswagen Jetta operated by defendant pull in front of the convenience store adjacent to the gas pumps. The passenger of the Jetta, Darrel Mitchell, briefly went into the convenience store. When he came out, the Jetta drove to a residence on Roberts Lane, the home of Ryan Townsend, "who also through intelligence [was] known to be involved in the use and distribution of CDS" in the area. The Jetta arrived at Townsend's house before the officers arrived. When the officers arrived, they saw someone in the passenger's seat. Shortly thereafter, a male exited Townsend's house, but because of the darkness, police could not see who it was.

When the Jetta pulled out of the driveway, Siitonen and Padulese each resumed following it. By cell phone, Padulese notified Siitonen that defendant's Jetta had run a red light; however, Siitonen was unable to apprehend defendant due to the traffic on Route 73. After five minutes of searching unsuccessfully for defendant's vehicle, Siitonen observed defendant's vehicle pull into the Marlton Meadows apartment complex. Siitonen had a clear view of the Jetta from the time defendant pulled into the Marlton Meadows complex until he pulled out of the parking lot and turned onto the roadway. It was then that Siitonen activated his overhead lights and effected a motor vehicle stop for running the red light on Route 73.

When Siitonen asked defendant for his driver's license and registration, defendant was unable to produce his license. Siitonen then asked defendant where he was coming from that evening. Defendant responded that he had dropped something off for his sister at the Marlton Meadows apartments; however, Siitonen, who had an unobstructed view, did not see anyone exit defendant's vehicle while it was parked at the apartment.

Siitonen then focused his attention on Mitchell. Mitchell was "very vague in his answers," and stated that he "didn't know where [he and ...

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